Compensation for Miscarriage of Justice

The Court of Appeal (Civil Division) - Lord Dyson MR; Sir Brian Leveson P and Hamblen LJ - has dismissed appeals of Sam Hallam and Victor Nealon - R (Hallam and Nealon) v Secretary of State for Justice [2016] EWCA Civ 355. The appeals were concerned with whether the two men should be paid compensation for miscarriage of justice following the quashing of their convictions.

Recently, Parliament has adopted an exceptionally parsimonious stance in relation to compensation for miscarriage of justice even where an individual has spent many years in prison: e.g. 17 years in Mr Nealon's case. The effect of section 133 of the Criminal Justice Act 1988 as amended by section 175 of the Anti-Social Behaviour, Crime and Policing Act 2014 is that, for compensation purposes, there is a miscarriage of justice if and only if new or newly discovered fact(s) shows beyond reasonable doubt that the person did not commit the offence. This, in effect, amounts to a need to show innocence and it is therefore no surprise that a question arose as to whether the amended law was compatible with the European Convention on Human Rights Article 6(2) - "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law."

The outcome is highly unsatisfactory. Where an individual's conviction is quashed he is entitled to be treated, for all purposes, as if he had never been convicted - Sir Thomas Bingham MR in R V Secretary of State for the Home Department exp Bateman [ 1994] 7 Admin LR 175. However, the compensation process requires that individual to have to establish his innocence again. This question is decided by the Secretary of State and not by some independent individual or body. The Secretary of State has a clear governmental financial interest in NOT paying compensation.

Will the case now proceed to the Supreme Court? Lord Dyson said (para 70) - "The question remains whether we should give permission to appeal to the Supreme Court so that the issue of whether article 6(2) applies at all in these cases can be resolved. I would leave that decision to the Supreme Court itself because (i) the line of Strasbourg case law on the applicability issue is so clear that there can be no doubt as to what the view of the ECtHR would be on the applicability of article 6(2) to section 133; and (ii) it is clear that, for the reasons that I have given, section 133 is compatible with article 6(2).